Terms and conditions
1. The Services to be provided by Optimity
1.1 Optimity shall supply you, our Customer, with data circuits including connections to the Internet and direct point to point connections between two locations (“the Services”)
1.2 Optimity’s acceptance under this Agreement is subject always to Optimity satisfying itself that it can provide the Services to you by carrying out a site survey, if appropriate. Should Optimity find after a site survey that, for any reason, providing the Services is unacceptable to it, this Agreement or an individual order may be rescinded by Optimity without liability.
1.3 Optimity shall use all reasonable care and skill of a competent telecommunications service provider to provide you with high quality Services. Optimity shall correct any failures in the Services as soon as it is reasonably practical unless the failure is caused by a reason covered in Clause 5.4.
1.4 Optimity shall use all reasonable efforts to provide you with the Services by such date as Optimity may advise you.
2. Your Obligations to Optimity
2.1 You shall ensure that:
2.1.1 Your IT equipment (to the extent that it is not provided or maintained by Optimity) is in good working order and complies with all the applicable standards and approvals so as to enable the provision of the Services; and
2.1.2 You do not use the Services for any improper or unlawful purposes or in a manner which is offensive of for a purpose which is unlawful, nor allow others to do so; and
2.1.3 You only use and connect ducting, cables, sockets and other equipment approved for use by Optimity and which comply with all relevant legislation and regulations relating to their use; and
You comply with this Agreement and any reasonable instructions Optimity gives you relating to use of the telephone network; and
You provide reasonable assistance to Optimity to enable it to provide the Services; and
You obtain access to all appropriate sites for Optimity engineers and other Optimity authorized personnel at mutually agreeable times and you allow removal, installation and maintenance of Optimity equipment when requested by Optimity; and
You meet your payment obligations set out in Clause 3; and
You shall indemnify Optimity fully against all losses, liabilities, costs (including legal costs) and expenses which Optimity may incur as a result of any breach of your obligations under this Agreement or misuse of the Services, whether by you or not.
3. Optimity Charges & Payment
3.1 The charges for the Services are set out in this Agreement and which Optimity may vary from time to time with three month’s written notice to you, the Customer subject to the expiry of any Minimum Term.
Optimity will prepare and send invoices in respect of all charges under this Agreement. Call charges plus VAT will be billed monthly in arrears. Line rental charges plus VAT will be billed quarterly in advance.
All charges are due for payment 28 days from the date of invoice, unless otherwise stipulated on the Service Order Form for the corresponding service. You shall pay the charges for the Services whether or not the use of the Services is authorised by you.
If payment is not made when due Optimity may, without prejudice to its other rights, charge interest at the rate of 3% above the base rate from time to time of HSBC Bank on any amount you fail to pay from the date when payment was due until the date of actual payment.
4. Optimity Warranties & Limitation of the Liability of Optimity
4.1 To the extent that all or any part of the Services are faulty, unavailable or interrupted Optimity will use its reasonable endeavours to provide the Services. Optimity shall not be liable for faults in your telecommunication and/or IT equipment which results in Optimity being unable to provide the Services.
4.2 Optimity shall not be liable for any damages whatsoever to property at your premises resulting from the installation, repair or removal of Optimity equipment or associated wiring carried out by Optimity or by Optimity’s contractors unless such damage is caused by Optimity’s or Optimity’s contractor’s willful misconduct or negligence.
Save as provided in any applicable Service Level Schedule and Clause 4.2 Optimity has no liability under this Agreement for Optimity’s negligence or otherwise. In no circumstances shall Optimity be liable for any direct or indirect loss of profits, revenue, business or anticipated savings you expected to make, indirect or consequential loss or data being harmed or lost, whether in contract, tort or otherwise (including negligence). In the event of a failure in the Services, Optimity shall not be liable if you direct your traffic to another carrier for any additional costs or losses of doing so.
Optimity shall not be liable for any failure of performance of the Services for reasons beyond Optimity’s reasonable control, including but not limited to default or failure of a third party (including another public telecommunications operator or maintainer) government actions, failure in the supply of third parties’ access or other events of force majeure.
Any liability Optimity may have of any sort (including any liability because of Optimity’s negligence) shall in no circumstances exceed the total annual charges levied by Optimity in respect of one event or series of events in any calendar year.
4.6 Optimity does not exclude liability in relation to death or personal injury caused by Optimity’s negligence.
4.7 This Clause 4 sets out Optimity’s entire liability in relation to this Agreement. All other express or implied terms, conditions or warranties (whether statutory or otherwise) are hereby excluded to the fullest extent permitted by law. The provisions of this Clause 4 shall continue to apply even when this Agreement terminates or expires.
4.8 Each part of this Agreement that excludes or limits the liability of Optimity operates separately. If any part is disallowed, or is not effective, the other parts will continue to apply.
5. Length of this Agreement & Ending this Agreement
5.1 This Agreement shall commence from the date of commencement of Services and (subject to the provisions of this Clause 5) shall continue for the Minimum Term as stipulated on this Agreement and shall thereafter continue from year to year unless terminated by either Party giving to the other not less than three months prior written notice to that effect such notice to not expire prior to the end of the Minimum Term or the annual renewal.
5.2 Either Party can suspend the Services or end this Agreement forthwith at any time without informing you if:
5.2.1 The other Party materially breaches this Agreement; or
5.2.2 Bankruptcy or insolvency proceedings are brought against the other Party or voluntarily commenced a receiver is appointed over any of the other Party’s assets or the other Party becomes insolvent; or
5.3 In addition to anything else Optimity can do, Optimity can suspend the Services or end this Agreement forthwith at any time without informing you if:
5.3.1 You materially breach this Agreement or any other agreement you have with Optimity (including failure to pay charges when due); or
5.3.2 Bankruptcy or insolvency proceedings are brought against you or voluntarily commenced a receiver is appointed over any of your assets or you become (or in Optimity’s sole opinion may become) insolvent; or
5.3.3 Optimity, in its sole discretion, suspects that any fraudulent act is being, or may be, perpetrated in respect of the Service, or you exceed any account limit in relation to your expenditure in any period, or you cancel a direct debit.
5.4 Upon ending or suspension of this Agreement all amounts you owe Optimity for use of the Services shall be due and payable in full on demand and you shall have no right to withhold or set off any such amounts.
6. Transferring this Agreement
6.1 You cannot transfer or try to transfer this Agreement, or any part of it, to anyone else without Optimity’s prior written consent.
Optimity may transfer this Agreement at any time
7.1 This Agreement is governed by English Laws and disputes will be decided in the English Courts.
7.2 This Agreement sets out the whole agreement between you and Optimity for the Services.
You agree that Optimity may collect data and information about your use of the Services and provide this information to companies affiliated with Optimity and also to third parties solely for management information, billing or other service purposes, or any other legal or regulatory obligation Optimity is under.
Any waiver, concession or extra time Optimity may allow you is limited to the specific circumstances in which it was given. It does not affect Optimity’s rights under this Agreement in any other way.
8.1 Optimity’s address for service of notices is 5-25 Scrutton Street, London EC2A 4HJ. Your address for service shall be at the address you ask Optimity to send bills to. Optimity may, by written notice to you substitute another address which shall then become the notice address.
8.2 Any notice given in connection with this Agreement shall be served in writing by registered, recorded delivery or normal post or delivered by fax or by hand.